FIFTH SECTION
CASE OF KOZYR AND OTHERS v. UKRAINE
(Application no. 19204/19 and 2 others –
see appended list)
JUDGMENT
STRASBOURG
20 June 2024
This judgment is final but it may be subject to editorial revision.
In the case of Kozyr and others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mārtiņš Mits,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 30 May 2024,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
THE LAW
JOINDER OF THE APPLICATIONS4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention5. The applicants complained of the ineffective investigation into deaths or life-threatening accidents without involvement of State agents. They relied, expressly or in substance, on Article 2 § 1 of the Convention.
6. The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarised in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are inter‑related and each of them, taken separately, does not amount to an end in itself (ibid., § 225).
7. Moreover, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).
8. Reviewing the facts of the present case in the light of those principles, the Court considers that the investigations were marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the deaths of the applicants’ next of kin or the circumstances of life-threatening accidents without involvement of State agents, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.
9. In the leading cases of Kachurka v. Ukraine (no. 4737/06, 15 September 2011), Pozhyvotko v. Ukraine (no. 42752/08, 17 October 2013) and Basyuk v. Ukraine (no. 51151/10, 5 November 2015) the Court already found violations in respect of issues similar to those in the present case.
10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigations failed to meet the criteria of effectiveness.
11. These complaints are therefore admissible and disclose a breach of Article 2 of the Convention under its procedural limb.
APPLICATION OF ARTICLE 41 OF THE CONVENTION12. Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk, cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;Holds that these applications disclose a breach of Article 2 § 1 of the Convention concerning the ineffective investigation into deaths or life-threatening accidents without involvement of State agents; Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 20 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Carlo Ranzoni
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 2 § 1 of the Convention
(ineffective investigation into deaths or life-threatening accidents without involvement of State agents)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Background to the case and domestic proceedings
Key issues
Amount awarded for non-pecuniary damage per applicant / household
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
19204/19
30/03/2019
Maryna Valentynivna KOZYR
1969
On 20/10/2004 the applicant sustained multiple serious injuries in a traffic accident caused by a private person. On the same day criminal proceedings were opened into the incident. On 04/06/2008 a first-instance court sentenced the perpetrator. On 29/08/2008 a court of appeal quashed the sentence and remitted the case for fresh consideration, finding that the investigation was incomplete (the timing of the manoeuvre leading to the accident, the position of the vehicles, the visibility of the moving vehicles and the presence/absence of any changes in the terrain of the road were not considered). By its decision of 13/07/2010, a court of appeal (acting as a first-instance court) returned the case to a prosecutor for additional investigation. The applicant challenged that decision, but it was upheld by the Supreme Court on 12/10/2010.
On 28/11/2013 a first-instance court acquitted the perpetrator. On 23/03/2015 a court of appeal quashed the acquittal, sentenced the perpetrator, but discharged him from punishment due to the expiration of the statutory limitation period. On 11/06/2015 the Supreme Court left the perpetrator’s cassation appeal without consideration on procedural grounds.
On 03/11/2017 the applicant lodged a civil claim against the perpetrator, seeking damages. By its decision of 14/08/2018 (upheld on appeal on 11/10/2018) the court partially granted her claim and ordered the perpetrator to pay compensation.
On 21/11/2018 the Supreme Court refused to open cassation proceedings upon her cassation appeal for the triviality of the case.
Repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Antonov
v. Ukraine, no. 28096/04,
§ 50, 3 November 2011),
lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Igor Shevchenko
v. Ukraine, no. 22737/04,
§ 60, 12 January 2012; Zubkova v. Ukraine,
no. 36660/08, § 40,
17 October 2013),
investigation criticised by the national authorities themselves for lack of efficiency (Prynda
v. Ukraine, no. 10904/05,
§ 56, 31 July 2012; Pozhyvotko v. Ukraine,
no. 42752/08, § 40,
17 October 2013).
6,000
-
43629/21
21/08/2021
Mykola Petrovych KOSTYNYUK
1953
Romanyuk Valeriy Illich
Chernivtsi
On 12/01/2019, at around 1:00 p.m., the applicant was hit near a pedestrian crossing by a car driven by B., resulting in the applicant sustaining serious bodily injuries. On 16/01/2019 the police initiated criminal proceedings on account of a breach of the road traffic rules which resulted in bodily harm to the applicant. On 06/08/2020 the local prosecutor’s office acknowledged that the investigation had been superficial, and that necessary investigative actions and examinations were not conducted. On 12/11/2020 the investigating judge partially granted the applicant’s complaint regarding police inactivity, noting that the police had failed to carry out a forensic medical expert examination of the applicant, as well as a technical expert examination of the car, along with other investigative measures.
On 07/04/2021 the police investigator decided to terminate the criminal proceedings. That decision was set aside by the prosecutor’s office on 12/04/2021 due to the failure to carry out a medical examination of the applicant.
On 30/09/2021 the investigator terminated the proceedings again. That decision was then set aside by the prosecutor on 20/12/2021.
On 10/07/2023, following the applicant’s request about the progress of the investigation, the prosecutor informed him that the applicant’s casefile had been lost by the investigator.
An internal investigation was instituted in that regard. On 11/12/2023 the casefile was found by the investigator and sent to the prosecutor upon his request. By a letter of 20/12/2023, the prosecutor stated that the progress of the investigation in the present case was unsatisfactory. The investigation is pending.
No genuine attempt by the investigating authorities to carry out a thorough investigation (Yuriy Slyusar v. Ukraine,
no. 39797/05, §§ 84-88,
17 January 2013; Lyubov Efimenko
v. Ukraine,
no. 75726/01, §§ 76-80,
25 November 2010),
investigation criticised by the national authorities themselves for lack of efficiency (Pozhyvotko
v. Ukraine, no. 42752/08,
§ 40, 17 October 2013; Prynda v. Ukraine,
no. 10904/05, § 56, 31 July 2012).
6,000
250
6765/23
03/02/2023
Household
Antonina Oleksiyivna GREBENYUK
1982
Mykhaylo Oleksiyovych GREBENYUK
1980
Sosyedko Maksym Oleksandrovych
Kyiv
In August 2012 repair works were carried out on the Kyiv-Chop highway. On 08/08/2012 the car of the first applicant fell into a ditch formed in the process of these works. She and her daughter M. sustained bodily injuries; her mother A. died. The second applicant is A.’s son and the first applicant’s brother. A foreign private company, T., was responsible for the repairs, including for the organisation of the traffic during that period.
1. Criminal proceedings against the first applicant.
On 10/08/2012 a criminal investigation was opened against the first applicant on a violation of the traffic rules.
On 29/08/2012 a forensic pathologist was appointed to examine the corpse of A. On the same day an examination of the technical condition of the car was scheduled.
On 06/09/2012 an additional inspection of the scene was carried out to record the traffic organisation scheme and road signs.
On 14/09/2012 a forensic examination was ordered for the first applicant’s daughter - minor injuries were found.
According to an expert opinion of 02/10/2012, the examination of the technical condition of the vehicle did not reveal any characteristic signs of sudden failure or technical malfunction of systems which could have direct causal connection with the emergency situation and the traffic accident.
On 02/10/2012 the second applicant was granted victim status.
On 20/09/2013 the first applicant was convicted of a violation of the traffic rules.
On 26/11/2013 the appellate court quashed the verdict and remitted the case for a new consideration. It found the verdict unsubstantiated due to the failure of the first-instance court to consider the materials of the criminal investigation on violation of the traffic safety rules by company T.
2. Criminal proceedings on breach of safety rules by the company T.
On 12/10/2012 the investigator refused to open a criminal investigation on a charge of a violation of the traffic safety rules by company T.; however, on 04/01/2013 it was opened. On 16/03/2013 the investigator closed the case for lack of evidence of a crime. On 21/10/2013 the first-instance court upheld that decision; the first applicant appealed.
On 03/12/2013 the appellate court quashed the decision of the first-instance court of 21/10/2013 and ordered the renewal of the criminal proceedings. The court reasoned that the casefile lacked evidence of the fact on the basis of which the investigator had made a conclusion about lack of evidence of a crime, i.e. conclusion regarding the compliance of the installed fence of the repair area with the legal requirements.
3. Joint proceedings
On 04/11/2014 two sets of proceedings were joined.
On 01/08/2014 the first-instance court returned the case of the first applicant to the prosecutor for an additional investigation.
On 28/05/2015 a forensic traffic examination established that the road accident was caused by the improper organisation of the traffic during the repair works on the road.
In the course of the pre-trial investigation, a number of forensic examinations (the exact number was not indicated by either the applicant or the Government) were carried out, which did not provide a clear conclusion as to the causal connection between the actions of the driver of the car, the employees of the road repair company and the consequences of the accident, and sometimes contained mutually excluding conclusions
On 28/08/2015 the case against the first applicant was closed for lack of evidence of a crime.
On 11/09/2015 the first applicant and her daughter M. were granted victim status in those proceedings.
On 18/09/2019 and 20/01/2020 two comprehensive forensic road traffic examinations were ordered. It was established that the proper actions of the first applicant were governed by the traffic rules requirements and that one of the causes of the accident from a technical point of view was improper traffic management.
On 29/09/2021 the forensic traffic examination established that one of the reasons for the road accident had been an improper organisation of the traffic during the repair of the road. The expert also concluded that it had been impossible to establish whether the action or omissions of the first applicant had also caused the accident.
On 16/02/2022 the first-instance court terminated the criminal proceedings due to the expiration of the statutory limitation period; on 29/06/2022 the appellate court upheld that decision on appeal. On 03/10/2022 the first applicant and on 10/10/2022 the second applicant appealed in cassation, having requested renewal of the appeal period. The second applicant argued that he had received the decision of the appellate court on 11/07/2022, therefore the appeal period should have been counted from that date and should have ended on 11/10/2022.
On 06/10/2022 the Supreme Court (SC) refused to renew the time limit for cassation appeal for the first applicant and on 20/10/2022 for the second one. In the decision of 20/10/2022 the SC reasoned that according to the domestic law the appeal period should have been counted from that date when the decision had been proclaimed, namely 29/06/2022. Thus, the appeal period had ended on 30/08/2022, while the second applicant did not demonstrate good reasons for having missed it.
Lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Igor Shevchenko
v. Ukraine, no. 22737/04,
§ 60, 12 January 2012; Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013),
no genuine attempt by the investigating authorities to carry out a thorough investigation (Yuriy Slyusar v. Ukraine, §§ 84-88, 17 January 2013; Lyubov Efimenko
v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010).
6,000
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.